COURT OF APPEAL FOR ONTARIO DATE: 20231023 DOCKET: C70131

Hourigan, Paciocco and Nordheimer JJ.A.

BETWEEN

His Majesty the King Respondent

and

Shane Sureskumar Appellant

Counsel: Robert Tomovski, for the appellant Heather Fregeau, for the respondent

Heard: September 8, 2023

On appeal from the convictions entered by Justice Feroza Bhabha of the Ontario Court of Justice on August 25, 2021, and from the sentence imposed on December 23, 2021.

Hourigan J.A.:

A. Introduction

[1] The appellant was convicted of the following counts: count one – identity theft; count two – attempted fraud over $5,000; count three – fraud over $5,000; and count four – fraudulent possession of credit card data. The facts underlying these convictions may be briefly stated as follows.

[2] The appellant was employed as a teller in a branch of the Bank of Montreal. The identity theft conviction relates to an incident on March 26, 2019, when he accessed the client portfolio of an elderly bank customer, Amado Castillo, on the bank’s computer system. The attempted fraud conviction arose from an attempt by the appellant and an unknown co-conspirator to wire $150,000 from Mr. Castillo’s account on April 11, 2019. The fraud conviction results from the transfer of $150,000 from Mr. Castillo’s account to an overseas bank account the next day. Mr. Castillo discovered the transfer and alerted the bank. The bank stopped the transaction and launched an internal investigation.

[3] The results of the bank’s investigation were provided to the police and became the basis for the appellant’s arrest in the parking lot outside the branch on May 2, 2019. During his arrest, the appellant identified himself to the arresting officer, and she requested proof of identification. The appellant told the arresting officer that his wallet was in his car, and the arresting officer demanded his car keys and retrieved the wallet. She confirmed his identification, and the wallet was then placed in the pocket of the appellant’s coat.

[4] Later, at the police station, the police seized the appellant’s wallet and cell phone. A search of the wallet revealed a sticky note with credit card data for three accounts written on it. A subsequent investigation determined that the credit cards listed on the sticky note had been used for unauthorized transactions.

[5] The police obtained a search warrant for the cell phone. A search of the cell phone revealed an image of the sticky note. The credit card data on the sticky note forms the basis of the last count on the four-count Information.

[6] At trial, the appellant brought an unsuccessful Canadian Charter of Rights and Freedoms application under ss. 7, 8, and 10(b) seeking to exclude the sticky note found in his wallet. He also sought to quash the warrant that the police obtained to search his cell phone. That application was dismissed.

[7] On the conviction appeal, the trial judge is alleged to have made three errors: (i) finding that the seizure of the wallet did not violate s. 8 and in not excluding the sticky note from evidence; (ii) finding that the warrant to search the cell phone could have issued even if the sticky note was excluded; and (iii) relying on inadmissible evidence related to count four in her credibility assessment on all counts. The appellant also seeks leave to appeal his sentence, arguing that the trial judge erred in not imposing a conditional sentence. In support of his sentence appeal, he brought an application to adduce fresh evidence.

[8] At the conclusion of the hearing, the conviction appeal was dismissed, leave to appeal sentence was granted, and the sentence appeal was dismissed with reasons to follow. In summary, while the appellant is correct in his assertion that the seizure of the wallet breached his s. 8 rights, I would not exclude the sticky note because a s. 24(2) analysis makes plain that its admission would not bring the administration of justice into disrepute. Further, the trial judge did not err in her conclusion that the warrant would have issued even if the sticky note was excluded. Given those conclusions, it is unnecessary to consider the appellant’s argument about the use of testimony across counts. Regarding the sentence appeal, the trial judge considered and properly rejected a conditional sentence. Finally, the appellant’s fresh evidence application on his sentence appeal does not provide a basis for this court to interfere with the sentence imposed.

B. Analysis

(i) Search Incident to Arrest

(a) Section 8 Breach

[9] In effecting an arrest, peace officers have the power to search incident to arrest. This is an extraordinary power because it requires neither a warrant nor independent reasonable and probable grounds, but, instead, arises from the lawful arrest itself: R. v. Caslake, [1998] 1 S.C.R. 51, at para. 13, citing Cloutier v. Langlois, [1990] 1 S.C.R. 158. This power permits a peace officer to “search a lawfully arrested person and to seize anything in their possession or the surrounding area of the arrest”: R. v. Stairs, 2022 SCC 11, 467 D.L.R. (4th) 579, at para. 34.

[10] The common law standard for a search incident to arrest requires that (i) “the individual searched has been lawfully arrested”; (ii) “the search is truly incidental to the arrest in the sense that it is for a valid law enforcement purpose connected to the arrest”; and (iii) “the search is conducted reasonably”: Stairs, at para. 35; R. v. Stillman, [1997] 1 S.C.R. 607, at para. 27.

[11] The jurisprudence from the Supreme Court has identified three valid law enforcement purposes connected to a search incident to arrest: (i) police and public safety, (ii) preventing the loss or destruction of evidence, and (iii) discovering evidence that may be useful at trial: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 75. However, those categories are not closed, as the Supreme Court has left open the possibility that further valid law enforcement purposes may develop in subsequent case law. In Caslake, for example, the court stated, at para. 25, that “the police must be able to explain, within the purposes articulated in Cloutier … (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched.” [Emphasis added.]

[12] The requirement that the search be truly incidental to the arrest involves both a subjective and an objective component. Subjectively, the police officer must have one of the purposes in mind when searching. Objectively, the police officer’s belief that the search will serve the intended purpose must be reasonable: Caslake, at para. 19.

[13] This appeal raises the issue of whether a search incident to arrest for identification purposes can be considered a valid law enforcement purpose. There is no binding authority on this point. However, there is precedent in the Ontario Superior Court of Justice that supports the idea that a search to confirm an arrestee’s identity constitutes a valid law enforcement purpose because it is consistent with the proper administration of justice: R. v. Singh, 2015 ONSC 6312, 343 C.R.R. (2d) 127, at para. 35; R. v. Nunnery, [2007] 147 C.R.R. (2d) 325, at paras. 25-29. The issue was also raised in the Supreme Court in the context of a civil claim for unlawful arrest, but the court declined to determine the point: Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335, at para. 100.

[14] It is unnecessary to rule whether a search incident to arrest for identification purposes can be considered a valid law enforcement purpose. That is because this case can be determined on the issue of reasonableness. As noted above, the jurisprudence is clear that a valid search incident to arrest must be carried out reasonably: Stillman at para. 27; Stairs, at para. 35. The same conclusion was reached in Cloutier. However, in the course of her analysis in Cloutier, at pp. 181-82, L’Heureux‑Dubé J. extended the notion of reasonableness beyond a consideration of how the search was carried out:

In determining the exact scope of a police power derived from the common law, this Court often had recourse to considerations of principle, and the weighing of the competing interests involved (Eccles v. Bourque, [1975] 2 S.C.R. 739, Dedman v. The Queen, [1985] 2 S.C.R. 2, and R. v. Landry, [1986] 1 S.C.R. 145). Competing interests are important factors in determining the limits of a common law power. When the power in question comes into conflict with individual freedoms, it is first necessary to decide whether the power falls within the general scope of the duty of peace officers. This duty, clearly identified, must historically have been recognized by the courts as tending to promote the effective application of the law. Secondly, the Court must determine whether an invasion of individual rights is justified. In this regard, Le Dain J. in Dedman defined what he meant by “justifiable use of the power” in question (at p. 35):

The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference. [Emphasis added.]

It is therefore necessary in this second stage to determine whether an invasion of individual rights is necessary in order for the peace officers to perform their duty, and whether such an invasion is reasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other respect for the liberty and fundamental dignity of individuals.

[15] It is apparent from the foregoing that in crafting an analytical approach to determining the validity of a search, the Supreme Court in Cloutier was taking a holistic view of whether the search was a justified intrusion into the rights of the accused. The court instructed that it was essential to consider whether the search was both necessary and reasonable. Somewhere in the development of the jurisprudence on search incident to arrest, the notion of necessity seems to have been lost. For example, in Stairs, the most recent examination of the law of search incident to arrest from the Supreme Court, there is no reference to necessity. However, nothing in the case law suggests that necessity is not a valid consideration.

[16] In any event, it may be simpler to view necessity as a component of the larger notion of reasonableness discussed in Cloutier (i.e., a reasonableness inquiry that considers more than how the search was conducted). The appellant submitted that it was unnecessary for the police to have undertaken a search for further identification because they already had ample proof of his identity. If the focus of the reasonableness inquiry was limited to the manner in which the search was conducted, I would be required to ignore this concern, even if meritorious, and the police would be free to conduct an unnecessary search even though the power to search is premised on promoting peace officers’ abilities to execute their duties. An analysis of the necessity of the search should be a component of the broader reasonableness analysis under the third branch of the search incident to arrest test, because it allows the court to determine whether the search is consistent with the underlying public policy imperatives.

[17] In the case at bar, I accept the trial judge’s finding that the arresting officer was genuinely attempting to confirm the appellant’s identity before he was transported to the police station and that she was not obliged to accept his self-identification. The trial judge then found that while other means were available to the arresting officer to confirm the appellant’s identity, the search was not unreasonable, stating: “I cannot and do not fault [the arresting officer] for wanting to confirm Mr. Sureskumar’s identity before transporting him to the station. While other avenues may have been available to her, it was not an unreasonable step to take in the circumstances of this case where identity theft was an allegation” (emphasis in original). The trial judge also determined that the way the search was conducted was reasonable.

[18] With respect, the trial judge erred in failing to analyze why a search that she found was one of many avenues to confirm identity was reasonable in the circumstances. Had she done so, it would have been clear that there were multiple equally convenient and expeditious means to obtain confirmation of identity. For example, the arresting officer could have confirmed the appellant’s identity by speaking with bank employees, including the bank investigator who was in the branch at the time of the arrest. I am also comfortable taking judicial notice of the fact that the arresting officer had an onboard computer in her police vehicle that would have provided her access to the driver’s licence database.

[19] The trial judge was required to consider why a search that was unnecessary for the arresting officer to carry out her stated police purpose of confirming the identity of the appellant was reasonably conducted. Had the trial judge done so, it would have been evident that it was not reasonable for the arresting officer to search the appellant’s vehicle and seize the wallet. Therefore, the search of the appellant’s vehicle to locate the wallet constituted a breach of his s. 8 Charter rights.

(b) Section 24(2) Analysis

[20] The next step is to conduct a s. 24(2) analysis to determine whether the sticky note should be excluded from evidence. It is worth reiterating that s. 24(2) is a critical component of any application to exclude evidence, because the exclusion of evidence does not automatically follow the finding of a breach. Section 24(2) excludes evidence only in circumstances where its admission would bring the administration of justice into disrepute. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 and its progeny, the Supreme Court has provided an analytical structure that has been carefully calibrated to assist lower courts in determining whether evidence should be excluded. It must be rigorously applied because a finding of a breach of a Charter right standing alone is an inchoate remedy.

[21] In the case at bar, the trial judge conducted a s. 24(2) analysis in the alternative and concluded that she would not have excluded the evidence if there were a Charter breach. Because this was an alternative inquiry, the trial judge’s analysis is not owed any deference by this court. However, her “underlying factual findings must be respected, absent palpable and overriding error”: Grant at para. 129; R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at para. 97.

[22] Regarding the first Grant factor – the seriousness of the Charter-infringing state conduct – the trial judge determined that the search for the wallet was undertaken to retrieve identification. She found that it was a brief search, as the officer stopped once she found the wallet and checked the identification. The trial judge further found that the officer had acted in good faith, “believing that she was permitted to look for identification as part of a valid search incident to arrest” and that there was no evidence of a police pattern of ignoring constitutional rights during the investigation.

[23] In undertaking an analysis of the seriousness of state misconduct, intermediate courts of appeal must not exceed their role by recharacterizing the evidence or by departing “from express findings by the trial judge which are not tainted by any clear and determinative error”: R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 51.

[24] In the present case, the trial judge’s findings on this branch of the analysis are amply supported by the record and free from error. I accept them as part of my analysis of the seriousness of the state misconduct. It is evident that, although the search was unreasonable, the arresting officer genuinely believed that she was entitled to search the appellant’s car for his wallet for the purpose of confirming his identity. I conclude that the breach was not serious, and this factor militates against excluding the evidence.

[25] Regarding the impact on the rights of the accused, the trial judge made no factual findings but concluded that the impact was “not insignificant” because people enjoy a reasonable expectation of privacy in their vehicles. She found that this factor “tilts towards exclusion, but not overwhelmingly so.” As noted, I am not bound by the trial judge’s analysis, and I disagree with her assessment of the breach’s effect on the appellant’s rights. What is excluded from her analysis is the effect of the discoverability of the sticky note on the impact on the rights of the appellant.

[26] The Supreme Court in Grant, at para. 76, described the focus of an inquiry into the seriousness of the impact of the breach on the Charter-protected interests of the accused as follows: “it calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed.”

[27] Later in Grant, in the context of a review of the law of derivative evidence, the court said the following about discoverability, at para. 122:

Discoverability retains a useful role, however, in assessing the actual impact of the breach on the protected interests of the accused. It allows the court to assess the strength of the causal connection between the Charter-infringing self-incrimination and the resultant evidence. The more likely it is that the evidence would have been obtained even without the statement, the lesser the impact of the breach on the accused's underlying interest against self-incrimination. The converse, of course, is also true. On the other hand, in cases where it cannot be determined with any confidence whether evidence would have been discovered in absence of the statement, discoverability will have no impact on the s. 24(2) inquiry.

[28] The Supreme Court in Côté, at para. 66, confirmed that discoverability has, “in appropriate circumstances, a useful role to play in the s. 24(2) analysis where the interest at stake is one other than self-incrimination.” The Supreme Court’s comments about discoverability establish that an assessment of the impact of a Charter breach should consider whether the evidence in issue could have been obtained through other Charter-compliant means. That analysis cannot be speculative. There must be compelling grounds to believe the evidence would otherwise have been obtained. In those circumstances, discoverability is a factor that should be considered in determining the impact of the violation of the rights of the accused.

[29] In the present case, discoverability was a significant factor. An image of the sticky note was found on the appellant’s cell phone after it was searched pursuant to a warrant. As discussed below, I agree with the trial judge’s assessment that the warrant would have issued even if the sticky note information was excluded from the Information to Obtain (“ITO”). Therefore, there can be no doubt that the evidence in issue would have been obtained in a Charter-compliant manner. As a practical matter then, there was minimal impact on the appellant because the same evidence was available and admissible from his cell phone. I conclude that this line of inquiry militates in favour of admission of the evidence.

[30] The third line of the Grant inquiry asks the court to consider society’s interest in an adjudication of a criminal allegation on the merits. The crux of the analysis is whether the truth-seeking function of the criminal trial process is better served by admission or exclusion of the impugned evidence, recognizing that those who transgress the law have a right to be prosecuted according to the law: Grant, at para. 79.

[31] The significance of this line of inquiry should not be underestimated. It is the only part of the Grant analysis that explicitly calls for a consideration of society’s legitimate interests. Given that the whole point of the s. 24(2) analysis is to determine whether a reasonable member of the public, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of impugned evidence would bring the administration of justice into disrepute, a proper understanding of society’s interest in an adjudication on the merits is of vital importance.

[32] The sticky note is reliable evidence on count four. The credit card data correlates to accounts in which unauthorized transactions occurred. Thus, this factor also supports the admission of the evidence.

[33] In balancing the three lines of inquiry, all three favour the admission of the evidence. The sticky note is reliable evidence obtained in good faith after a very brief search of the car with minimal impact on the rights of the appellant. I would not exclude the sticky note from the evidence.

(ii) Warrant to Search the Cell Phone

[34] At the outset of her review of the issuance of the warrant to search the appellant’s cell phone, the trial judge quoted R. v. Garofoli, [1990] 2 S.C.R. 1421, at para. 56, and correctly instructed herself that:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If based on the record which was before the authorizing judge as amplified on review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In the process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[35] She noted that in the ITO, the officer was seeking six items:

(a) electronic records of identity and financial data belonging to Mr. Castillo and the three other clients found on the sticky note,

(b) electronic records of banking transactions conducted on compromised accounts,

(c) evidence of the identity of the person(s) involved in the personation of Mr. Castillo and the production of the forged identifications used,

(d) records of communications between the appellant and any person(s) involved in the planning and execution of the offences,

(e) evidence of the whereabouts of money obtained through the offences, and

(f) electronic records of any other identity data belonging to Bank of Montreal clients.

[36] The trial judge reasoned that even if the references to the sticky note were excised from the ITO, there was a sufficient basis to obtain the warrant to search the cell phone. She found that the police had “good reason to believe that a search of the phone would afford evidence of the offence for use at trial, for example, data relating to the complainant Mr. Castillo in the allegations regarding the wire fraud.” Accordingly, she denied the Garofoli application.

[37] This court owes deference to the findings of a reviewing judge in their assessment of the record as amplified on the review and their disposition of the s. 8 application. As this court articulated in R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 89, “Absent an error of law, a misapprehension of evidence, or a failure to consider relevant evidence, an appellate court should decline to interfere with a reviewing judge’s decision.”

[38] The test for reviewing the sufficiency of a warrant application asks “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued”: R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 16. Here, there were ample grounds, even excluding the sticky note, that supported the issuance of the warrant. For example, it was a reasonable inference that the appellant would have communicated with his unknown co-conspirator, whom he served at the bank on April 11 and 12, and that he would have done so using the cellphone he was carrying at the time of his arrest only a handful of days later. Further, the appellant had accessed Mr. Castillo’s personal data on March 26, 2019, and, again, it was a reasonable inference that some or all of his personal data was stored on the cell phone. As stated by Watt J.A., in R. v. Nero, 2016 ONCA 160, 334 C.C.C. (3d) 148, at para. 83, leave to appeal refused, [2016] S.C.C.A. No. 184:

Self-evidently, cellphone records reveal contact with others, the frequency of that contact and, if they include tower information, where the contact occurred. This information is of evidentiary value in proof of preliminary as well as substantive crime, and thus will afford evidence respecting the commission of an offence.

This is not to say that warrants to search cell phones should be authorized in all cases. Still, in the present case, there was a sufficient basis to reasonably believe that the appellant’s cell phone would contain evidence of the offences committed.

[39] Before concluding on this issue, it is necessary to consider one other argument advanced by the appellant. He submits that the police only sought the issuance of the warrant once they discovered the sticky note. According to him, this reinforces the importance of the sticky note in the issuance of the warrant. This submission does not persuade me, given that there were other sufficient grounds to issue the warrant independent from the sticky note.

[40] Further, there is no evidence to support a finding that a warrant was sought only because of the discovery of the sticky note. On the contrary, D.C. Mildenberger, one of the officers who searched the appellant at the police station, testified, “And so during the search I located a cell phone and seized his wallet. I took it and seized the cell phone for evidence. I looked through his wallet for evidence, and inside the wallet, I found a sticky note.” This testimony suggests that the officer intended to search the phone for evidence before he discovered the sticky note.

[41] Based on the foregoing, I would not interfere with the trial judge’s decision on the Garofoli application.

(iii) Credibility Assessment

[42] The appellant submits that the trial judge relied on inadmissible evidence relating to count four in her credibility assessment on all counts, resulting in a miscarriage of justice. It is unnecessary to consider this argument because, as the appellant conceded, this submission is premised on the sticky note being excluded and the search warrant being quashed.

(iv) Sentence Appeal

[43] The appellant submits that the trial judge erred in not imposing a conditional sentence. He relies on this court’s decision in R. v. Ali, 2022 ONCA 736, 164 O.R. (3d) 81 and argues that the trial judge made the same errors as the trial judge in Ali, namely by automatically excluding a conditional sentence because of the nature of the conviction and failing to consider the suitability of a conditional sentence having regard to all relevant sentencing objectives. According to the appellant, a conditional sentence was appropriate based on his status as a youthful first-time offender and the fact that no loss was suffered. This submission is unpersuasive.

[44] This case is distinguishable from the unique factual situation in Ali. In that case, the trial judge erred because she automatically excluded a conditional sentence from consideration because the offence involved significant violence. This court found, at para. 38, that this was an error in principle:

It was an error in principle for the trial judge to rule out a conditional sentence based on the level of violence in this case without considering the extent to which a conditional sentence could provide deterrence and denunciation, especially if punitive conditions were imposed, and without weighing all of the relevant sentencing objectives that were applicable in the factual circumstances.

[45] In contrast, in the case at bar, the trial judge stated that she “must give serious consideration to the possibility of a Conditional Sentence Order.” She found that a conditional sentence was clearly available. With respect to rehabilitation, the trial judge commented that a sentence in the community could assist in the appellant’s rehabilitation, but she then stated, “I am not convinced that Mr. Sureskumar can be said to be an excellent candidate for rehabilitation given that he denies any culpability in the offences.” These findings distinguish this case from Ali, where the trial judge refused to consider a conditional sentence for an offender who had excellent rehabilitative prospects.

[46] The trial judge stated that she was mindful of the principle of restraint in sentencing a relatively youthful first offender. She then turned to the issue of whether a conditional sentence could give sufficient weight to the principles of general deterrence and denunciation “once all the circumstances of the offences and the offender are taken into account.” The trial judge noted, citing R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, that conditional sentences are available even in cases where deterrence and denunciation are the paramount sentencing objectives. After instructing herself in this regard, she concluded that the many aggravating circumstances and very few mitigating circumstances led her to conclude that a traditional jail sentence was appropriate. She sentenced the appellant to 12 months’ incarceration and noted that, but for the pandemic and the appellant’s relative youthfulness, she would have sentenced him to 18 months.

[47] The appellant submits that the trial judge erred because she focused on deterrence and denunciation to the exclusion of other sentencing objectives. I do not accept this submission. The trial judge explicitly considered rehabilitation. Further, the focus was on deterrence and denunciation because the trial judge was rightly concerned about whether a conditional sentence could meet these objectives in the circumstances of this case.

[48] With regard to balancing the mitigating and aggravating factors, the appellant argues that the trial judge erred because there were just as many mitigating factors as aggravating factors. This is incorrect. As the trial judge noted, the appellant had no criminal record and was relatively youthful. It is not a mitigating factor inuring to the benefit of the appellant that Mr. Castillo was diligent in checking his banking records and was able to spot the fraud quickly and prevent the loss. These modest mitigating factors were overwhelmed by the aggravating factors, including the breach of trust, the quantum of the fraud, the sophistication involved in the fraud, the fact that this was not an isolated incident of dishonest conduct, and that the appellant’s actions were motivated by greed.

[49] There is no basis to interfere with the sentence imposed. Indeed, given the nature of the breach of trust, a more significant period of incarceration might well have been warranted. Canadians repose their trust in the country’s financial institutions, providing them with their most confidential financial information. If this trust were broken, the Canadian economy would cease to function. Thus, the severe nature of the breach of trust in this case weighed in favour of imposing a period of incarceration.

[50] Finally, the appellant brought an application to adduce fresh evidence related to his time on bail. The Crown did not oppose the application. I would admit the fresh evidence, but it changes nothing. Primarily, it recounts how the appeal was delayed because of problems with obtaining transcripts and how the terms of his bail impacted the appellant’s social life. I note that the appellant was free to leave his home at any time when accompanied by his surety. However, counsel for the appellant informed the court that his client’s surety was not available to go out as much as his client desired. Nothing in this evidence would justify this court’s interference with the sentence imposed.